Wilczewski v. Wilczewski

• Decision Date: 02 October 1933
• Docket Number: 65-1933
• Citation: 110 Pa.Super. 561,168 A. 337
• Parties: Wilczewski v. Wilczewski et al., Appellants
• Court: Pennsylvania Superior Court

168 A. 337

110 Pa.Super. 561

Wilczewski v. Wilczewski et al., Appellants

No. 65-1933

Superior Court of Pennsylvania

October 2, 1933

Argued April 21, 1933

Appeal by defendants from decree of C. P., Beaver County, December T., 1930, No. 9, in Equity, in the case of Frances Wilczewski v. Steve Wilczewski and Antoni Gajewski.

Bill in equity to compel the reconveyance of real estate. Before McConnel, J.

The facts are stated in the opinion of the Superior Court.

The court directed the reconveyance. Defendant appealed.

Error assigned, among others, was the decree of the court.

Reversed.

A. B DeCastrique, for appellants. -- The written authority of the holder of an equitable interest in real estate is not necessary in order for the holder of the legal title to convey title. Kline's Appeal, 39 Pa. 463; Dayton v Neuman, 19 Pa. 194; Brownfield's Executors Exrs. v. Brownfield, 151 Pa. 565.

Myron E. Rowley of Craig & Rowley, for appellee, cited: Murphy v. Hubert, 7 Pa. 420; Hatcher v. Hatcher, 264 Pa. 105; Stockdale v. Sellers, 102 Pa.Super. 447.

Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

Stadtfeld, J.

This is an appeal by defendants from the final decree of the lower court decreeing the cancellation of a deed from Antoni Gajewski and Josephine Gajewski, his wife, to Steve Wilczewski and Frances Wilczewski, dated May 10, 1928, declaring it to be null and void, and ordering and directing Antoni Gajewski, of defendants, to execute and deliver to Frances Wilczewski, complainant, a general warranty deed conveying to her in fee simple an undivided one-half interest in a certain lot situate in the Borough of Aliquippa, formerly the Borough of Woodlawn, County of Beaver.

The court below, in an opinion by McConnel, J., correctly sets forth the issue in this case. We quote therefrom as follows: "On November 17, 1930, Frances Wilczewski filed a bill in equity against Steve Wilczewski and Antoni Gajewski wherein she set forth, among other things, that she was the wife of Steve Wilczewski and on or about July 1, 1925, she and Antoni Gajewski were contemplating the purchase of a tract of land situate in the Borough of Woodlawn, in this county, being lot No. 21 in the Woodlawn Land Company's Plan No. 11, fully described in said bill; that upon this lot there was erected a two-story frame dwelling house; that on or about July 1, 1925, she delivered to Antoni Gajewski $ 3,000 of her own money for the purpose of purchasing said real estate; that she was to receive an undivided one-half interest in said property, and the deed was to be made to the plaintiff and the said Antoni Gajewski as tenants in common; that the said Antoni Gajewski wickedly and fraudulently had the deed for said property made to himself and to Josephine Gajewski, his wife; that Antoni Gajewski continuously represented to the plaintiff that the deed to said property had been made to him and to her; that by deed dated May 10, 1928, and recorded in the Recorder's Office of Beaver County, the said Antoni Gajewski and Josephine, his wife, granted and conveyed an undivided one-half interest in said property to Frances and Steve Wilczewski, her husband; that the said conveyance was made without the knowledge and consent of the petitioner and without Steve Wilczewski furnishing any consideration therefor; that the said plaintiff and her husband had been separated and living separate and apart since April 7, 1928; and that Josephine Gajewski, the wife of Antoni Gajewski, had died January 1, 1929; the plaintiff prayed that the deed dated May 10, 1928, conveying a one-half interest in the property aforesaid to her and her husband be delivered up and cancelled, and that Antoni Gajewski be ordered and directed to convey to the plaintiff a one-half interest in the property above mentioned . . . .

"To this bill an answer was filed by the defendants on December 20, 1930, in which they admitted the purchase of the real estate mentioned in said bill of complaint; but averred that the said property was purchased by Antoni Gajewski for himself and also for Steve Wilczewski and his wife Frances Wilczewski; averred that the purchase price for said property paid by Frances Wilczewski belonged to her and to her husband Steve Wilczewski; denied that the said real estate was to be taken in the name of Antoni Gajewski and Frances Wilczewski, but averred that the title to the property was to remain in the name of Antoni Gajewski and Josephine Gajewski, his wife, and that the said Antoni Gajewski and his wife were afterwards to convey to the plaintiff and her husband an undivided one-half of the said premises in fee simple; that the deed dated May 10, 1928, made by Antoni Gajewski and his wife to the plaintiff and her husband, was made at the instance of the plaintiff and with her knowledge and consent, and that the undivided one-half of the property in question had been purchased for the plaintiff and her husband with money belonging to them, and not solely to the plaintiff."

After hearing, the chancellor found, inter alia, the following facts: "9. Antoni Gajewski was married to a sister of Frances Wilczewski and in 1925 lived in Woodlawn, Beaver County, Pennsylvania. In March, 1925, he talked with Mrs. Wilczewski about purchasing the real estate in question in this case, Mrs. Wilczewski leaving with him her deposit book in the Center Wheeling Savings Bank, which at that time showed a balance to her credit of $ 3,000. The interest due on July 1, 1925, increased this balance to $ 3,060.

"10. Antoni Gajewski had only $ 1,000 of his own in cash, and it was arranged between him and Frances Wilczewski that the property in question was to be purchased by him, and he was to borrow the balance of the purchase money required, outside of the cash raised by him and the $ 3,060 to be paid by the plaintiff, through a loan from a building and loan association.

"11. The deed for the property in question was made on July 7, 1925, to Antoni Gajewski and Josephine Gajewski, his wife, and was recorded in the recorder's office of Beaver County on July 8, 1925.

"12. Frances Wilczewski, on June 29, 1925, drew a check upon the Center Wheeling Savings Bank for $ 3,000 payable to the First National Bank of Woodlawn, and on July 2, 1925, $ 3,058.48 was paid by the Center Wheeling Savings Bank to the First National Bank of Woodlawn. This money was used by Antoni Gajewski to pay for one-half of the property in question in this case.

"17. In May, 1926, Frances Wilczewski and Steve Wilczewski moved into the property in question in this case and have lived there ever since.

"20. In March of 1928 Mrs. Wilczewski went to see H. W. Leonard, an attorney in Woodlawn in this county, about a separation agreement, and on April 7, 1928, she and her husband signed an agreement of separation in which it was contracted that they should live separate and apart from one another; he, however, was to occupy a room in the property in question in this case and was to pay her $ 60 a month.

"21. In April, 1928, Frances Wilczewski first found out that the title for the property in question in this case was in the name of Antoni Gajewski and Josephine Gajewski, his wife. This was after the separation agreement had been entered into between the husband and wife.

"22. Some time in the early part of May, 1928, Steve Wilczewski and Frances, his wife, and Antoni Gajewski and Josephine, his wife, went to the office of H. W. Leonard in Woodlawn and told him to draw a deed for the property in question in this case from Antoni Gajewski and his wife to Steve Wilczewski and Frances Wilczewski, his wife.

"23. This deed was drawn by H. W. Leonard, dated May 10, 1928, and was recorded in the Recorder's Office of Beaver County on May 17, 1928. After this deed was recorded it was delivered by Mr. Leonard to Frances Wilczewski, and she said that she was perfectly satisfied with the way in which the deed was made.

"25. Josephine Gajewski died January 1, 1929.

"26. In August of 1929, Steve Wilczewski became ill and it was found that he would have to go to a hospital to be operated upon, and on August 28, 1929, a written agreement was entered into by Antoni Gajewski and Steve Wilczewski and Frances Wilczewski, providing for the delivery to H. W. Leonard, Esq., in escrow, of a deed for the property in question in this case. This deed was to be delivered by Mr. Leonard to the purchaser of said real estate upon the receipt of $ 6,850. Out of this amount $ 200 was to be paid as a commission to a real estate agent and the balance after the payment of taxes, etc., was to be paid one-half to Antoni Gajewski, one-fourth to Frances Wilczewski and one-fourth to Steve Wilczewski upon his return from the hospital. This contemplated sale of the real estate was never consummated.

"27. The deed dated May 10, 1928, made by Antoni Gajewski and his wife to Steve Wilczewski and Frances Wilczewski, his wife, was made with the knowledge and consent of Frances Wilczewski.

"28. No writing was signed by Frances Wilczewski granting or assigning any of her interest in the real estate in question in this case to Steve Wilczewski.

"29. No writing was signed by Frances Wilczewski authorizing Antoni Gajewski and Josephine Gajewski to convey any part of the real estate owned by her to Steve Wilczewski."

The court found as a matter of law, inter alia: "3. When Antoni Gajewski and Josephine Gajewski on July 7, 1925, acquired title to the land in question in this case, they held the undivided one-half thereof in trust for Frances Wilczewski who had paid with her own money one-half of the consideration for this real estate.

"4. Frances Wilczewski could not grant or assign her interest in this real estate except...